Pennsylvania Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-123-FOR]

Pennsylvania Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Pennsylvania permanent regulatory program (hereinafter referred to as

the Pennsylvania program) under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The proposed amendment (Administrative

Record Number PA 837.80) revises the Pennsylvania program to

incorporate changes made to address required amendments to the

Pennsylvania program that are identified in OSM's approval of

Pennsylvania's coal refuse disposal amendment on April 22, 1998 (63 FR

19802). The amendment is intended to revise the Pennsylvania program to

be consistent with SMCRA and the Federal regulations.

DATES: Written comments must be received on or before the close of

business on September 28, 1998. If requested, a public hearing on the

proposed amendments will be held on September 22, 1998. Requests to

present oral testimony at the hearing must be received on or before the

close of business on September 14, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Robert J. Biggi, Director, Harrisburg

Field Office at the address shown below.

Copies of the Pennsylvania program, the proposed amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document will be available for public

review at the addresses listed below during normal business hours,

Monday through Friday, excluding holidays. Each requestor may receive

one free copy of the proposed amendment by contacting OSM's Harrisburg

Field Office. Any disabled individual who has need for a special

accommodation to attend a public hearing should contact the individual

listed unde FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director,

Office of Surface Mining Reclamation and Enforcement, Harrisburg Field

Office, Harrisburg Transportation Center, Third Floor, Suite 3C, 4th

and Market Streets, Harrisburg, Pennsylvania 17101, Telephone: (717)

782-4036.

Pennsylvania Department of Environmental Protection, Bureau of

Mining and Reclamation, Room 209 Executive House, 2nd and Chestnut

Streets, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone:

(717) 787-5103.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg

Field Office, (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

On July 31, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background information on the

Pennsylvania program including the Secretary's findings, the

disposition of comments, and a detailed explanation of the conditions

of approval of the Pennsylvania program can be found in the July 30,

1982, Federal Register (47 FR 33050). Subsequent actions concerning the

conditions of approval and program amendments are identified at 30 CFR

938.11, 938.12, 938.15 and 938.16.

II. Discussion of Amendment

By letter dated September 14, 1995 (Administrative Record Number PA

[[Page 45974]]

837.01), Pennsylvania submitted an amendment to the Pennsylvania

program. The amending language is contained in Pennsylvania House Bill

1075 and was enacted into Pennsylvania law as Act 1994-114. The

amendments changed Pennsylvania's Coal Refuse Disposal Act (of

September 24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980

(P.L. 807, No. 154)) to provide authorization for refuse disposal in

areas previously affected by mining which contain pollutional

discharges. OSM approved the amendments, with certain exceptions, on

April 22, 1998 (63 FR 19802-19821). The April 22, 1998, notice

contained seven required regulatory program amendments codified at 30

CFR 938.16 paragraphs (vvv) through (bbbb). On June 15, 1998 (63 FR

32615-32616), OSM corrected an inadvertent omission of a phrase at 30

CFR 938.16 paragraphs (vvv) through (bbbb), concerning the required

Pennsylvania regulatory program amendments published in the April 22,

1998, Federal Register notice at pages 19820-19821.

By letter dated May 22, 1998 (Administrative Record Number PA

837.72) Pennsylvania responded to the required regulatory program

amendments codified at 30 CFR 938.16 (vvv) through (bbbb) by submitting

three items: (1) Written clarifications relating to each of the

required regulatory program amendments; (2) the draft text of a notice

to be published in the Pennsylvania Bulletin intended to address one of

the required amendments; and (3) a legal opinion from the Pennsylvania

Department of Environmental Protection (DEP) legal counsel confirming

the DEP's authority to implement the necessary change.

By letter dated July 15, 1998 (Administrative Record Number PA

837.74) OSM responded to DEP's May 22, 1998, letter and stated that the

clarifications can only be incorporated into the approved Pennsylvania

program through formal rulemaking.

By letter dated August 17, 1998 (Administrative Record Number (PA

837.80)), the DEP requested that OSM process the DEP's May 22, 1998,

letter as a program amendment.

The proposed amendments are as follows:

Required amendment codified at 30 CFR 938.16(vvv)

The meaning of the term ``excess soil and related material'' as

used in the definition ``coal refuse disposal activities'' in

Section 3 of the Coal Refuse Disposal Control Act (CRDCA) is

clarified to mean the rock, clay or other materials located

immediately above or below a coal seam and which are extracted from

a coal mine during the process of mining coal. The term does not

include topsoil or subsoil. This clarification will be incorporated

in regulations as they are developed.

Required amendment codified at 30 CFR 938.16(www)

The Department has considered OSM's discussion relating to

variances on stream buffer zones. The Department's application of

variance provisions has previously been directed to ensuring that

coal refuse disposal activities within stream buffer zones would not

cause or contribute to the violation of State or Federal water

quality standards, and would not adversely affect water quality and

quantity, or other environmental resources of the stream. The

Department notes that any coal refuse disposal activity is likely to

cause some type of impact and that some impacts can be tolerated.

OSM interprets an adverse impact as one that exceeds the allowable

limits, that is, one that will not be tolerated. The Department's

interpretation of ``significant adverse impact'' is the same as

OSM's interpretation of ``adverse impact;'' in both cases, it is an

impact that will not be tolerated because it exceeds the allowable

limits. The Department distinguishes between impacts that are

tolerable and those that are not through its use of the word

``significant.'' However, the Department recognizes that differences

in terminology may cause confusion and will therefore suspend use of

the term ``significant,'' even though, in practice, the same

protections will continue to be afforded. Consequently, when

granting a variance, the Department will not implement the word

``significant'' in Sec. 6.1(h)(5) of the CRDCA, as it pertains to

granting of variances to the 100-foot stream buffer zone. Under

Sec. 15.1 of CRDCA, the Department has the authority to suspend

implementation of any provision of the CRDCA found to be

inconsistent with federal law by OSM. By notice scheduled to be

published in the Pennsylvania Bulletin on May 30, 1998, and in

accordance with Sec. 15.1 of the CRDCA, the Department will confirm

that it has suspended implementation of the word ``significant'' on

the basis of the Secretary of the United States Department of the

Interior's finding that the word ``significant'' was inconsistent

with federal law. The Department reaffirms that it will only

authorize variances to conduct coal refuse disposal activities

within stream buffer zones if the activities will not cause or

contribute to the violation of State or Federal water quality

standards, and will not adversely affect water quality and quantity,

or other environmental resources of the stream. This clarification

will be incorporated in regulations as they are developed.

In the May 30, 1998, Pennsylvania Bulletin (Vol. 28, No. 22)

Pennsylvania announced that the DEP suspended, in accordance with

Sec. 15.1 of the Coal Refuse Disposal Act (52 P.S. Sec. 90.65a), the

implementation of the word ``significant'' found in Sec. 6.1(h)(5) of

the Coal Refuse Disposal Act. Also included in the DEP's May 22, 1998,

submittal is a memorandum dated May 19, 1998, from the Chief Council of

the DEP. In that memorandum, the Chief Counsel stated that the

``Department [DEP] has the legal authority to suspend implementation of

the word `significant' and to clarify to OSM how the Department will

interpret and implement the Act 114 amendments as part of its approved

program. The Department's interpretations are consistent with the

law.''

Required amendment codified at 30 CFR 938.16(xxx)

The Department clarifies that preexisting discharges which are

encountered must be treated to the effluent standards of 25 Pa. Code

Sec. 90.102. This clarification will be incorporated in regulations

governing Section 6.2 of the CRDCA as they are developed.

Required amendment codified at 30 CFR 938.16(yyy)

The Department clarifies that subsection 6.2(h) of the CRDCA

pertains to preexisting discharges which are not encountered. This

clarification will be incorporated in regulations as they are

developed.

Required amendment codified at 30 CFR 938.16(zzz)

The Department clarifies that the revegetation standards of

subsection 6.2(k) of the CRDCA are limited to areas previously

disturbed by mining and which were not reclaimed to Pennsylvania's

reclamation standards. This clarification will be incorporated in

regulations as they are developed.

Required amendment codified at 30 CFR 938.16(aaaa)

The Department clarifies that under subsection 6.2(l) of the

CRDCA, a special authorization for coal refuse disposal operations

will not be granted when such an authorization would result in the

site being reclaimed to lesser standards than could be achieved if

the monies paid into the Surface Mining Conservation and Reclamation

Fund, as a result of a prior forfeiture on the area, were used to

reclaim the site to the standards approved in the original permit

under which the bond monies were forfeited. This clarification will

be incorporated in regulations as they are developed.

Required amendment codified at 30 CFR 938.16(bbbb)

The Department clarifies that the Department will implement

Section 6.3 of the CRDCA in a manner no less effective than 30 CFR

Sec. 785.13 and no less stringent than Section 711 of the Surface

Mining Control and Reclamation Act and clarifies that experimental

practices will only be approved as part of the normal permit

approval process and only for departure from the environmental

protection performance standards, and that each experimental

practice must receive the approval of the Secretary of the United

States Department of Interior. This clarification will be

incorporated in regulations as they are developed.

[[Page 45975]]

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comments on the proposed amendments to the Pennsylvania program

that were submitted on May 22, 1998. Comments should address whether

the proposed amendments satisfy the applicable program approval

criteria of 30 CFR 732.15. If the amendments are deemed adequate, they

will become part of the Pennsylvania program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this notice, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the OSM Harrisburg Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by the close of

business on September 14, 1998. If no one requests an opportunity to

testify at the public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 21, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-23242 Filed 8-27-98; 8:45 am]

BILLING CODE 4310-05-P